Divorce Mediation Caucusing Techniques and Ground Rules

Caucus-Session-300x200In my last two blog posts, I’ve discussed the considerations that take place when a divorcing by mediation couple is wondering whether or not to engage in divorce mediation by caucus. For some people, caucusing is an excellent way to keep emotions under control and support the successful outcome of divorce mediation. For others, caucusing may cause more problems than it solves. In this blog, I’ll be discussing the procedures and ground rules that divorce mediators like myself consider when clients opt to take the caucus session route. For me, the most important initial rule is to make sure that both parties are completely comfortable with the idea of caucusing. I can do this by discussing the options that both clients have with them during a joint mediation session. Once that decision has been made, the couple will sign an agreement on confidentiality of information.

It’s important for the clients in a divorce mediation to know what will happen to the information shared in private caucus sessions. For instance, is some of the information to be kept confidential, or should it all be shared in a joint environment? Does each piece of information need to be identified as either confidential or public? I ask the clients in divorce mediation sessions to opt in and agree to the confidentiality clauses that they feel comfortable in within a joint session before the caucusing sessions can begin.

Confidentiality and Trust in Caucusing

As a divorce mediator on Long Island and New York, it’s up to me to make sure that the clients in a divorce case feel comfortable discussing and negotiating their issues. Confidentiality can be a significant issue that all divorce mediators need to consider before they begin to engage in caucuses. As noted in this blog post, by Brad Spangler, many mediators will ensure that anything said in caucus will be kept confidential unless the individual states that it’s okay for that data to be shared. Some mediators will also use a system that involves only keeping information secret if the individual has asked for that data to be kept confidential. The key is to make sure that the strategy in place helps to maintain and preserve the trust of both parties.

In some cases, the party that isn’t involved in the other side’s caucus session may end up feeling suspicious about what’s going on behind the scenes. One way that I can attempt to keep things as even as possible is to make sure that each side of the divorce case gets the same number of caucuses. Additionally, it’s also a good idea for mediators like myself to keep the caucus to the same length for each client. Although there’s no one-size-fits-all set of rules for conducting a caucus, there are general guidelines available for today’s mediators to follow.

The Basic Guidelines of Caucusing

Once the divorce mediator enters a caucus session with a client according to the Spangler article linked to, it can be a good process to follow these basic guidelins:

  • The mediator begins by opening the caucus session with a general overview of the confidentiality agreement established for the session. Open-ended questions can be asked to launch the conversation, such as “How do you feel about the current negotiation?”
  • When participants begin talking, mediators like myself use active listening strategies to clarify and summarize the statements being made. I may also make notes during the meetings.
  • Mediators can also test statements by asking questions about how the party in question views the opponent’s positions. I can use certain methods like confrontation to examine a party’s positions in the discussion and explore potential options.

At the end of the caucusing session, I can often summarize the discussion and test potential suggestions for solutions to both party’s problems. During this stage, the party will have a chance to mention any concerns that they have about the negotiation, and we canclose the caucus with a reminder on confidentiality. It may also be useful for divorce mediators like me to request instructions on what I should say to the other party when we re-enter the negotiation. I can then enter into a caucus session with the other party to keep the process as even and balanced as possible.

Caucus sessions are often done “on the fly” which means that the parties can be separated from a joint mediation session at any moment for brief sessions. This article from Nolo.com highlights what might happen in those circumstances. Generally, during private caucus sessions, each party has a chance to discuss their concerns and ideas with the mediator in a separate environment. During this time, the mediator can move between rooms to discuss the weaknesses and strengths of each position and exchange potential ideas between parties. After the caucusing is over, I can bring the parties back into a shared space to negotiate directly again. However, it’s also possible to continue negotiating in private rooms if necessary, moving back and forward between the two parties.

Making the Most of Caucus Sessions

The process involved with caucus sessions can differ depending on the nature of the conversation or negotiation. If both parties are overly emotional, aggressive, or hostile, then it might be best for the divorce mediator (myself) to separate those parties and move back and forth between them in private caucusing sessions. Those private caucuses will allow me to discuss ideas with each party without the other being present. Usually, this can involve passing offers and demands between parties. Conversations between mediators and parties during private caucusing sessions are generally confidential unless a party authorizes something different.

Another technique of caucusing that I may use is to offer clients preliminary planning sessions. These are private sessions that are explained here in this previous blog of mine. In these planning sessions, I can have discussions that improve the rapport between me and the client from each side of the divorce. These sessions are a little different than breaking into caucus sessions on the fly, and they would need to be planned before the joint sessions but only after the parties opt into private preliminary planning during their initial consultation.

If you’re interested in learning more about caucusing, preliminary planning sessions, or divorce mediation, reach out to me, Mr. Darren Shapiro today. You can schedule your free initial 30-minute consultation over the phone on (516) 333-6555. Couples that wish to mediate with me will need to schedule their free initial consultation together with their spouse.